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of this section." And an exception is immediately made in the Behan et al. very next article, 1074, to the effect that "The debtor is liable GrandTrunk only for the damages which have been foreseen or might have been foreseen at the time of contracting the obligation, when his breach of it is not accompanied by fraud."

These two articles are precisely similar to articles 1149 and 1150 of the French Code.

It would appear from the authorities I have consulted, that these articles also fairly represent the law as it exists in England and in the United States.

In one of the English cases cited by the counsel for the defendants, the case of Hadley et al. v. Baxendale, (1) one of the rules laid down by the Court was that "Where two parties have made a contract which one of them has broken, the damages which the other ought to receive should be either such as may fairly and reasonably be considered arising naturally, i. e., according to the usual course of things, from the breach of contract itself, or, such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it."

The rule thus laid down in this case has been accepted both in England and in the United States, as the law in this matter; and as I have already said, it is also in accordance with our law and the law in France. (Mayne, on Damages, p. 10-Sedgwick, on Measure of Damages, I, 122-Parsons, on Contracts, I, 103.)

The difficulty then is not as to what the law is, but as to its application in individual cases. Domat, Pothier and others following in their wake, such as Toullier, Duranton, Demolombe, lay down the rule that ordinarily the debtor is only liable for such damages as the creditor, by reason of the breach of contract, might suffer in relation to the thing itself, propter rem ipsam non habitam, and they cite numerous examples to explain the meaning of the rule; but none of these examples are sufficiently in point to meet the multitude of cases which daily arise, or at all events to meet circumstances of the present case.

The point to be examined in each case is really this: What was the tacit agreement between the parties at the time of the contract, as regards the damages claimed ?

Demolombe (vol. 24, p. 566), says: "Eh bien! on a reconnu "très justement que la vraie cause de l'obligation subsidiaire

(1) 18 Jurist, O. S., 358 (1854).

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Behan et al. " des dommages intérêts réside dans une clause tacite de la conGrandTrunk "vention elle-même, par laquelle le débiteur consent à indem"niser le créancier pour le cas où l'obligation principale ne serait pas exécutée; "

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Or, une convention ne peut se former que par le consen"tement des parties; et le consentement des parties ne peut 's'appliquer qu'aux choses qu'elles ont prévues ou du moins qu'elles ont pu prévoir;

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"D'où résulte très logiquement notre règle que le débiteur "n'est alors tenu que des dommages intérêts qui ont été prévus ou qu'on a pu prévoir lors du contrat, puisque ce n'est que dans cette mesure qu'il a consenti à s'y obliger."

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Let us now apply the rule to the present case. Have the plaintiffs, in their declaration, alleged circumstances which would imply the agreement to pay damages resulting from loss of profit they would have made upon the sale of the goods, if these goods had not been damaged? Or, adopting the form of the rule as given in Hadley et al. v. Baxendale: Would this loss of profit, as alleged, be damages such as may fairly and reasonably be considered arising naturally, i. e. according to the usual course of things, from this breach of the contract itself, or such as may reasonably be supposed to have been in the contempla-" tion of both parties, at the time they made the contract as the probable result of the breach of it? Or, adopting the words of our code and of the French code: Should this loss of profit, as alleged, be considered as damages which were foreseen or might have been foreseen at the time of the contract?

If these questions are to be answered in the affirmative, the defendant's first demurrer must be dismissed.

What have the plaintiffs alleged? Their declaration sets forth in substance that they contracted at Glasgow with Messrs Allan to carry to Portland and deliver to the defendants there, for conveyance by them to their nearest station to Quebec, certain cases and bales of merchandises more amply described in the bill of lading and invoice produced with the declaration. The bill of lading describes these goods as "packages merchandize," and the invoice, which is as ample and detailed as possible, gives the description of every item of goods contained in the packages. On the bill of lading is printed the following notice: "It is absolutely necessary to send by the steamer which carries the goods a copy of the invoice and bill of lading

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to the agent of the Grand Trunk Railway, Portland, to avoid Behan et al. detention and expenses by the Customs authorities, which if Grand Trunk incurred, will be for risk and account of owners of the goods. J. & A. Allan will see that the required copy of the bill of lading is furnished to the Customs and will forward the copy of invoices with it, if handed in in time."

It is presumable, under the circumstances, that the required bill of lading and invoice were forwarded by J. & A. Allan to the Grand Trunk Railway Company, at Portland, and that the defendants knew the nature and description of the goods shipped. But even if they did not see the bill of lading and invoice, they would still be subject towards the plaintiffs to the same liabilities as the Messrs Allan whose contract they had undertaken to carry out. (1711 C. C.—Bedarride, chemins de fer, vol. 2, Nos. 593, 597.)

It seems to me, therefore, that the circumstances of this contract, as alleged in the declaration, are sufficient to so far justify the allegation of damages by loss of profit as to prevent this allegation from being rejected on demurrer.

From the nature and description of the goods, it is evident that they were the spring importation of a merchant, and intended to be resold at a profit. This profit was, to the knowledge of J. & A. Allan and subsidiarily of the defendants, one of the objects of the contract; there must therefore have been an implied agreement between the parties, that if the defendants deprived the plaintiffs of these profits, they would be liable in damages for the loss; these damages must have been in contemplation of both parties at the time of the contract, and they are certainly damages which, according to the wording of the code, either were foreseen or might have been foreseen.

This interpretation of the rule as applied to profits, is not unsupported by authority. As regards the jurisprudence in England, Mayne, in his Treatise on Damage, p. 43, says: “One very common instance in which damages are held to be too remote arises where the plaintiff claims compensation for the profits he would have made, if the defendant had carried out his contract. It is by no means true however that such profits can never form a ground of damage. There are many cases in which the profit to be made by the bargain is the only thing purchased, and in such cases, the amount of that profit is strictly the measure of damages." And further on, pages 44 and 45, he

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Behan et al. says: "When books and cases speak of the profits anticipated GrandTrunk from a good bargain, as matters too remote and uncertain to be taken into the account in ascertaining the true measure of damages, they usually have reference to dependent and collateral engagements entered into on the faith and in expectation of the performance of the principal contract. But profits and advantages which are the direct and immediate fruits of the contract entered into between the parties, stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements, something stipulated for the right to the enjoyment of which is just as clear and plain as the fulfilment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement."

This quotation from Mayne is a repetition of the precise words of chief justice NELSON, of the Supreme Court of New York, in the case of Masterton v. Mayor of Brooklin (Sedgwick's Leading Cases, [p. 247), and it shows that this decision has been accepted as a leading case in England, as well as in America.

In Parsons, on Contracts (Vol. 3, pp. 181-184), I find the following: "Both in England and America it is generally held that profits are not to be included in the injury for which compensation is to be made. Yet, these would seem to be precisely those consequences which the owner of the merchandize did expect, and the loss of them would be that which one who interfered with the owner, as by unlawful capture, must have contemplated as certain. But the answer is that profits are excluded, not because they are in themselves remote, but because they depend wholly upon contingencies, which are so many, so various and so uncertain...... that it would be impossible to arrive at any definite determination of the actual loss, by any trustworthy method...... But where profits are not liable to these objections, then they should be admitted as giving a right to compensation in damages.”

In the case of the Parana, (1866, L. R. 1 P. D. 463), Sir ROBERT PHILLIMORE cites and adopts as law the opinion of the Lord Chief Justice in the case of Simpson v. London & North Western Railway Company, which is reported as follows: "The law, as it is to be found in the reported cases, has fluctuated, but the

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principle is now settled that whenever either the object of the Behan et al. sender is specially brought to the notice of the carrier or cir- GrandTrunk cumstances are known to the carrier, from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered from the natural consequences of the failure of that object." In the same case of the Parana before the Court of Appeal, (1877, L. R., 2 P. D. 120), the principle was also accepted as settled, and Mellish, L J. further said: "When goods are conveyed by railway, if they are conveyed for the purpose of sale, it is usually for the purpose of immediate sale. No doubt, if goods are consigned to a railway company under such circumstances, the railway company may be reasonably supposed to know that they are consigned for the purpose of immediate sale, and if, by breach of contract on the part of the company, they do not arrive in time to be sold when the owner intends them to be sold, that may possibly be a ground for giving damages for what is called "loss of market."

Bedarride (Des Chemins de Fer, vol. 2, No. 483,) after mentioning that as regards passengers, the loss of baggage does not lead to very serious consequences, goes on to say: "Il n'en est 1. marchandises proprement dites.

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ERRATUM.

Vol. XI, p. 17, au bas de la page, remplacer les mots : RAMSAY, J.," par les mots " BABY, J."

"As in outi

should be the guide; and where, thoug

default of the carrier, profits are lost which would probably have been otherwise realized as the natural and direct result of the safe and prompt transportation of marketable goods to the intended market and not merely a private or special speculation of the shipper, the loss should be borne by the carrier."

All these authorities, taken in connection with the circumstances of the present case as alleged in the declaration, bear me out, I think, in the opinion I have just expressed as to